Hopanmay Murmu vs The Commissioner
2021 Latest Caselaw 3437 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Civil Writ Jurisdiction)
                    W.P.(C) No. 5118 of 2012
                         ........

Hopanmay Murmu                              .... ..... Petitioner
                           Versus

The Commissioner, Santhal Pargana Division, Dumka & Others .... ..... Respondents With W.P.(C) No. 6675 of 2012 ........

Khatu Murmu & Others                        .... ..... Petitioners
                           Versus

The Commissioner, Santhal Pargana Division, Dumka & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Petitioners             : Mr. D.C. Mishra, Advocate
For the Respondent/State        : Mr. P.C. Roy, S.C.(L&C)-I
For the Respondent No.5         : Mr. Peeyush Krishna Choudhary, Adv.
For the Respondent No.6         : Mr. Rajesh Lala, Advocate.
                                ........
07/15.09.2021.

Heard, learned counsel for the petitioners, Mr. D. C. Mishra, learned counsel for the State, Mr. P.C.Roy, S.C.(L&C)-I, learned counsel for the respondent no.5, Mr. Peeyush Krishna Choudhary and learned counsel for the respondent no.6, Mr. Rajesh Lala.

Both writ petitions arising out of common order, as such, are being heard together and disposed of by this common judgment.

Learned counsel for the petitioner has filed interlocutory application vide I.A. No.5169/2021 in W.P.(C) No.5118/2012 to substitute the legal heirs of respondent no.5, Jaibir Prasad Bhagat, S/o of Late Laxmi Narayan Bhagat, who died on 05.12.2018 leaving behind following legal heirs :-

5(a) Dewaker Pd. Jaiswal, S/o Late Jaibir Prasad Bhagat 5(b) Prabhakar Prasad, S/o Late Jaibir Prasad Bhagat 5(c) Narendra Kumar, S/o Late Jaibir Prasad Bhagat 5(d)Sanjay Kumar, S/o Late Jaibir Prasad Bhagat 5(e) Manoj Kumar, S/o Late Jaibir Prasad Bhagat All R/o Village- Mohanpur, P.O. + P.S.- Mahagama, District-Godda. Learned counsel for the respondent no.5, Mr. Peeyush Krishan Choudhary has submitted that he appears on behalf of the proposed legal

heirs of respondent no.5 and permissions may be accorded to substitute the same.

Accordingly, the I.A. No.5169/2021 is allowed.

Office is directed to substitute the name of substituted legal heirs of respondent no.5 as 5(a), 5(b), 5(c), 5(d) & 5(e) in course of the day.

Learned counsel for the petitioners has submitted that another interlocutory application has been filed vide I.A. No.5170/2021 in W.P.(C) No.6675/2012 for substituting the legal heirs of respondent no.6, Bishwanath Bhagat, S/o Late Hari Bhagat, who died on 23.03.2017 leaving behind following legal heirs:-

6(a) Binod Jaiswal, son of Late Bishwanath Bhagat 6(b) Krishna Nand Jaiswal, son of Late Bishwanath Bhagat, who died leaving behind his sons namely:-

6(b) (i) Vikash Jaiswal, son of Late Krishna Nand Jaiswal 6(b) (ii) Vijoy Jaiswal, son of Late Krishna Nand Jaiswal 6(b) (iii) Rajiv Kumar, son of Late Krishna Nand Jaiswal 6(b) (iv) Kundan Kumar, son of Late Krishna Nand Jaiswal 6 (c) Murli Prasad Jaiswal, son of Late Bishwanath Bhagat, who also died leaving behind his two sons namely:-

6(c)(i) Nawal Kishore, son of Late Murli Prasad Jaiswal. 6(c) (ii) Phrabhat Kumar, son of Late Murli Prasad Jaiswal. All resident of Mohanpur, P.O. + P.S.- Mahagama, District- Godda. Accordingly, the I.A. No.5170/2021 is allowed.

Office is directed to implead the name of substituted legal heirs as respondent nos.6(a), 6(b),6(b)(i), 6(b)(ii), 6(b)(iii), 6(b)(iv), 6(c), 6(c)(i) and 6(c)(ii).

Learned counsel for the petitioner has submitted that petitioner has prayed for quashing the order dated 27.06.2012 passed by Commissioner, Santhal Pargana Division, Dumka in R.M.R. No.67/2008-09, whereby the respondent no.1, who has preferred the revision application of the private respondent nos.5 & 6 without considering the provision of Section 25(3) of Sonthal Parganas Settlement Regulation, 1872 as earlier the predecessor of the present Commissioner had himself while passing order dated 28.11.2005 had relied upon Section 25(3) of the Regulation for

remanding the matter to the Settlement Officer, Dumka, which was affirmed by this Hon'ble Court, as writ petition vide W.P.(C) No.4150/2006 has been dismissed as withdrawn vide order dated 05.09.2006.

Learned counsel for the petitioner has submitted that earlier order passed by the Commissioner dated 28.11.2005 remanding the matter before the Settlement Officer, Dumka was justified and subsequent thereto the Settlement Officer, Dumka has heard these matter in Settlement Correction Case No.126/2006 and 127/2006. The Settlement Office, Dumka has recorded in page no.80 of the impugned award running page- 108 that:- "the issue of right and title has been left untouched because the petition is related with Jamabandi and settlement correction" and against the said order the petitioner has preferred R.M.R. Case No.67/2008-09, which was heard by the Commissioner and recorded the argument of the petitioner's as under:-

"Petitioner's counsel argued that last settlement commonly known as Gantzer's settlement JB No 4 and 9/K of mouza-Latria wihtin Mahagama police station of Godda subdivision came to be recorded in the name of Laxmi Narayan Bhagat father of my client. Last settlement in the locality was concluded in the year 1925 JB No-04 and 9/K of the mouza corresponds to McPherson settlement JB No-2 of the mouza which stood recorded in the name of Hari Bhagat, Arjun Bhagat, Chander Bhagat and Dukhan Bhagat.

McPherson settlement in the locality was concluded in the year 1908 and it appears that during McPherson operation, settlement authorities in Objection Case No. 768 of 1565 and Settlement Objection Case No.766 of 1905, after hearing Sona Manjhi and Fateh Manjhi and ancestor of the petitioners decided the dispute and directed to prepare McPherson parcha under JB No.2 for mouza-Lataria in the name of the ancestors of may client, who is the petitioner in this case. Such order as per section 11 of S.P. Regulation-III of 1872 has the force of civil court decree. Neither Sona Manjhi nor Fateh Manhi, nor their heirs filed any appeal or revision against the said order passed in Objection Case No. 768 and 766 of 1905. the McPherson settlement JB NO.2 corresponding to Gantzer's settlement JB No.4 and 9/K and corresponds to present settlement JB No.9/4, 12/4 and 12/9 and 4 of the mouza-Lataria which came to recorded in the name of the father of this petitioner Laxmi Narayan Bhagat and Hari Bhagat who was the recorded tenant of Gantzer's settlement JB No.4 and 9K. He submitted that McPherson settlement in the locality

conclude after 112 back and Gantzer's settlement concluded about 83 years back and Hon'ble Jharkhand High Court in a decision reported in 2004 JCR Page No 257 has already held that parcha after 70 years of its preparation cannot be corrected and following this principles this court has rejected application for correction of Gantzer's settlement parcha which were prepared about more than 70 years in SCC No-22 of 2006. The respondents filed a Settlement Correction Case No-310 and 311 of 97-98 for correction of JB No-2 of McPherson settlement and JB No-4 and 9K of Gantzer's settlement after about 112 years and 93 years respectively of the preparation thereof, His Settlement Correction Case No-311 of 1997 came to be registered in the said court. It is submitted that Wood settlement concluded in the year 1872 and-the respondents whose identity is not clear, filed such petition alleging that during McPherson settlement of 1905 by playing fraud the ancestors of the petitioner got the corresponding parcha in JB No-2 prepared in their name. The O.P concealed about the orders passed during McPherson settlement by competent authorities. The said cases were transferred to the learned Charge Officer, Dumka for disposal. The learned Charge Officer vide an order dated 21-3-2002 passed in Settlement Correction Case No-311 rejected the petition filed by the O.P above named and in the same way Settlement Correction Case. No-310 of 1997 was also rejected. The O.P filed Settlement Correction Appeal No-1 of 2002-03 in this court against the order dated 21-03-02 passed by the learned Charge Officer in Settlement Correction Case No-311 of 1997 and in the same way Settlement Correction Appeal No-02 of 2002-03 was filed by the other set of petitioners of Settlement Correction Case No-310 of 1997 and without giving any proof regarding their relationship with the recorded tenant of Wood settlement and without giving any explanation as to why no stay for correction of the parcha was taken for more than 100 years and without giving any explanation as to why no appeal was filed against the order passed in Objection Case No-766 and 768 of 1905, during McPherson settlement on the basis of which names of ancestors of the petitioners were recorded for the lands of McPherson settlement JB No-2. That fraud was committed in the said Settlement Correction Case No-768 and Settlement Correction Case No.766 of 1905 and by misleading this court succeeded in obtaining an order of remand dated 28-11-2005 passed in Settlement Correction Appeal No-1 of 2002-03 which was heard with Settlement Correction Appeal No-2 of 2002-03 where by this court held (admittedly the land in question were recorded in the name of ancestors of appellant before McPherson settlement and Wood settlement. The same were recorded in the name of ancestors of the O.Ps during both McPherson and Gantzer's settlement. Ancestors of the present appellant filed their claim before the s2ttlement officer during the McPherson settlement

which were decided in the Settlement Objection Case No-766 and 768 of 1905. Certified copy of the order passed on 20-12-1905 and 21-12-1905 revealed that the plaintiffs in those cases which were the ancestors of the present appellant (present O.P) had claimed holding the land on Bhauli since it was purchased by the defendants. Ancestors of the O.P (present appellant) in the year 1879 and auction and his claim was rejected. Obviously the claim of the ancestors of the appellant (present O.P) over the land. At that time did not raised any kind of fraudulent transfer. Now after a lapse of 100 years, the appellant (present O.P) is claiming on the basis of alleged fraud and collusiveness with deliberate attempt to recap the benefit of legal provisions applicable to all together a different situation. All the plea advanced by the appellant (the present O.P) relating to the provisions of section 27 of S.P. Regulation - III of 1872 prohibits all transfer particularly in nature of Bhauli base on the settlement report of McPherson or Gantzer's are negatated by cardinal points emerging out of proceedings in 1905 which are based on any claim that the ancestors of the O.P (present appellant) had purchased the land fraudulently but on the claim of the ancestors of the appellant (present O.P) that they were cultivating in Bhauli purchased by other party in the auction in the year 1879) and with some other findings this court remanded the case to the learned Settlement Officer vide an dated 28-11-2005 passed in Settlement Correction Appeal No-2 of 2002-03 with Appeal No-1 of 2002-03 with following observation:-

"Settlement Officer should go into the matter in details and come to the conclusion and passed a reasoned order in doing the settlement officer should not be guided by the conclusion in para no-2 of the above case that may change on the basis of fresh materials to be produced during the trial in this court. He further argued that on remand the learned settlement officer wrongly and illegally vide an order dated 23-07-08 and 25-07-08 passed in Settlement Correction Case No-126 and 127 of 2006 allowed the prayer of the O.P and their by directed correction of both McPherson and Gantzer's parcha and to remove the names of the petitioner from the same. This present RMR No-67 of 2008-09 has been filed against the order dated 23-07-08/25-07-08 passed by the settlement officer in Settlement officer in Settlement Correction Case No- 126 of 2006 while Settlement Correction Appeal No.63/2008-09 has been filed against the order dated 23-07-08/25-07-08 passed by the settlement officer in Settlement Correction Case No-127 of 2006.

The respondent's counsel argued that the name of his client's ancestors was in Wood settlement of 1872 and in McPherson settlement the ancestors of appellant by fraud succeeded to get their names entered.

From the perusal of documents prepared during McPherson settlement and Gantzer's settlement and as per the provisions of section 11 of S.P.

Regulation of 1872 and the decision reported in 2004 JCR Page No-257 and the decision of this court as well in SCC No-22 of 2006 having been passed relying upon the decision of Hon'ble High Court of Jharkhand as Stated above. It 1s clear case in which the learned lower court of settlement officer by exceeding his jurisdiction has passed order for correction of McPherson parcha and Gantzer's settlement parcha which also amounts to disobeying the order passed by the Hon'ble High Court and this court as already stated above. Under these facts and circumstances the order dated 23-07-08/25-07-08 passed by the Settlement Officer, Dumka in Settlement Correction Case No-126 of 2006 and Settlement Correction Case No-127 of 2006 are liable to be set aside and so I set aside these orders and all steps taken on the basis of said orders of the settlement officer should be restored in favour of petitioners of RMR No- 67/2008-09 and Settlement Correction Case No-63/2008-09 and accordingly both the above revisions are being allowed."

Learned counsel for the petitioner has further submitted that Settlement Officer, Dumka has rightly done so under Section 25(3) of the Sonthal Parganas Settlement Regulation, 1872. Section 25 of the Sonthal Parganas Settlement Regulation, 1872 may profitably be quoted hereunder:-

"25. Record to be final after six months publication.-(1) After a period of six months from the date of the publication of the record-of-rights of any village, such records shall be conclusive proof of the rights and customs therein recorded, other than the rights mentioned in Section 25-A, except so far as concerns entries in such record regarding which objections by parties interested may still be pending in the Original or Appellate Courts, or may still be open to appeal.

(2) Notwithstanding anything contained in sub-section (1), the Settlement Officer may, at any time before the settlement is declared by a Notification in the Official Gazette to have completed,-

(a) inquire into and correct any material error in such record; and

(b) revise any order or decision passed by himself or by an Assistant Settlement Officer:

Provided that no such order or decision shall be so revised where nay order passed by the Commissioner is likely to be

affected by such revision, or where an appeal from such order or decision is pending before the Commissioner:

Provided, further that no material error shall be corrected and no decision or order shall be revised, until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

(3) When a record-of-right has become final, or any objection to any entry in a record-of-right has been finally disposed of in the Settlement Courts, and when all final decisions and orders, including such as may have been passed on revision as provided in sub-section (2), have been correctly embodied therein, such record shall not, until a fresh settlement is made or a new table of rates and rent-rols are prepared, be re-opened without the previous sanction of the State Government.

(4)(a) Notwithstanding anything contained in sub-section (3), in case of the discovery of material error in any such record- of-right, the Commissioner may by an order in writing direct that such error shall be corrected in the manner specified in the order:

Provided that no material error shall be corrected until reasonable notice has been given to the parties concerned to appear and to be heard in the matter.

(b) Every order passed by the Commissioner under this sub-section shall be final and conclusive and shall not be re- opened until a fresh settlement is made or a new table of rates and rent-rolls is prepared.

(c) The State Government may make rules to regulate the procedure to be followed in case of the discovery of material error in any such record-of-right and generally for the guidance of the Commissioner in the discharge of his functions under clause (a).

Learned counsel for the petitioner has submitted that Settlement Officer, Dumka has rightly decided the issue in favour of the petitioner, which was unnecessarily set aside and upset by the Commissioner in the impugned orders.

Learned counsel for the petitioner has relied upon the judgment passed by the Coordinate Bench of this Court in the case of Smt. Parvati Devi & Ors. Vs. The State of Bihar & Ors. reported in (2000) 1 PLJR

72. Para-6 of which may profitably be quoted hereunder:-

"6. On the submissions of the learned counsel for the parties and by looking into the "relevant Rules and Act it is found under the Santhal Parganas Settlement Regulation III of 1872 under Section 25 Clause-3 that when a record of rights became final, such record shall not, until the fresh settlement is made, be reopened without the previous sanction of the State Government. Here, in the present case, when fresh settlement was going on then the Assistant Settlement Officer (Attestation) had gone into the merits which was within the power to do as he had the authority under the said regulations to go into the right and title of the persons by reopening the matter during the course of settlement. The Assistant Settlement Officer is a competent authority having the powers of civil court for disposing of objections to the survey and settlement proceedings under Rules XIV-XV. The Settlement Officer have got the powers of the civil court under the said Regulation III of 1872 as per notification made by the Government on 8.8.1978. The main ground for reopening the matter by the Assistant Settlement Officer (Attestation) was that the exchange as claimed was not for mutual benefit as second class lands were exchanged with first class lands to the detriment of aggrieved party and that such an exchange had never been implemented as the Jamabandi is still continuing in the name of respondent no. 6. The necessary ingredients for valid exchange are that it must be bonafide for mutual convenience of the parties and the transactions must not be concealed sale. At the time of attestation the Assistant Settlement Officer is empowered to look into the bonafide of the exchange and as such in the present case it had been looked into and he had set it aside. Moreover, in respect of the compromise decree when the Assistant Settlement Officer was having the powers of the civil court during the course of fresh settlement had every authority to ignore the compromise decree when such compromise decree also suffers from collusiveness on the face of it as the lands belong to the State of Bihar, have been included in the compromise decree which definitely vitiates the whole of the decree itself. It appears, on going into the orders of the Assistant Settlement Officer, that he had entered into the merit of the case of both the parties in detail and as such came to the finding that the exchange was not for mutual benefits hence he had asked for inclusion of the name of respondent no. 6 in the Jamabandi ignoring such exchange. The compromise decree was also considered by the learned Assistant Settlement Officer on the materials on record and on the above grounds as mentioned had come to the finding that it was a collusive one as the lands not belonging to the parties had been included in the compromise decree. In appeal the settlement officer echoed only to the documents on exchange and of the compromise decree and had set aside the order of the Assistant Settlement

Officer. Before the Commissioner original records were produced and all the documents were construed although detailed orders had not been passed on each and every documents he had set aside the settlement officer's order restoring the Assistant Settlement Officer's order as contained in Annexure-8. Only because the documents filed by the petitioners had not been elaborately discussed by the Commissioner in Annexure-1, it cannot be said that he had not considered those documents. He had considered those documents and it appears from his short order that he had gone into deep in the matter and then upheld the Assistant Settlement Officer (Attestation)'s order. Assistant Settlement Officer's order is an elaborate one and practically that order has been merged with the appellate court's order. When illegality or impropriety cannot be shown on the face of it by the petitioners in the order of the Commissioner, there is no scope under the writ jurisdiction of this Court to re- enter into the disputed points of facts when the power exercised by the revenue authorities were within the ambit of Santhal Parganas Act and the Regulations and Rules framed thereon."

Learned counsel for the petitioner has thus submitted that the Commissioner was not right in interfering with the finding recorded by the Settlement Officer after remand of the case by the Hon'ble Court.

Learned counsel for substituted legal heirs of the respondent no.5, Mr. Peeyush Krishna Choudhary has submitted that the order of the Settlement Officer itself shows in page no.80 of the Settlement Officer's order running page-108 of the brief that "the issue of right and title has been left untouched because the petition is related with Jamabandi and settlement correction".

Learned counsel for the respondent has further submitted that in the Brown woods settlement the name of ancestor of Khatu Murmu, Hanju Murmu and Mangal Murmu were recorded, but subsequent to that in Sonthal Pargana there was another McPherson settlement. In the McPherson settlement the name of the ancestors of Jaibir Bhagat, Laxmi Narayan Murmu and Bishwanath Bhagat have been recorded on the basis of auction sale made in favour of their ancestor as reflected in page no.18 running page no.46 of the brief of order passed by Settlement Officer, that land in question were purchased by ancestor of Arjun Bhagat in an auction sale in 1879 and thus it became own property of Bhagat and it was recorded as a tenant of Jamabandi no.2 of Village-Govindpur during the McPherson settlement. Further it appears that woods settlement was

continued from 1873 to 1879 and this auction was made in year 1879, as such, the necessary correction has been made in the McPherson settlement during 1888 to 1907, which remain as it is during the Gentzer's Settlement for the period 1927 to 1935.

The objection filed by the ancestor of the writ petitioner in the McPherson settlement vide Objection Case No.766/1905 and 768/1905 was considered and thereafter the McPherson correction was made, which attains finality and thereafter the Gentzer's settlement was also concluded in 1935, which remains conclusive and final. No title suit has been preferred by the ancestor of the petitioner to claim his title. By way of a settlement order that too after remand, which was passed by the Settlement Officer without going into right, title in the matter as reflected in the order at page-8 of the Settlement Officer itself, the petitioners are claiming over the land, which has rightly been set aside by the impugned orders, as such, this Court may not interfere with the same.

Learned counsel for substituted legal heirs of the respondent no.5 has placed reliance upon the judgment passed by Coordinate Bench of this Court in the case of Mohan Hazra & Ors. Vs. State of Jharkhand & Ors. reported in (2004) 2 JCR 257 = (2004) 2 JLJR 234, whereby the writ petition has been dismissed on the ground that the such prayer has been made after 70 years of the finality, which cannot be set aside.

Learned counsel for substituted legal heirs of the respondent no.5 has thus submitted that writ petition being devoid of merit may be dismissed without any interference by this Court.

Mr. Rajesh Lala, Advocate appears on behalf of the respondent no.6, Bishwanath Bhagat, but after his death his power ceased to appear though his legal heirs have been brought on record, but it would be proper for this Court to consider that all the lands of J.B. No.9/K acquired for Eastern Coal Field Ltd. and awards were made in the name of O.Ps. and other co-sharers and also got part of the compensation, as such, the writ petitioners and the ancestor have already lost their case and there is no case for the writ petitioner to invoke provisions under Articles 226 of the Constitution of India to upset the order passed by the learned Commissioner.

Learned counsel, Mr. P.C. Roy, S.C.(L&C)-I appearing for the State has submitted that during the survey settlement operation, there is bar of jurisdiction of Civil Court as per the Section 5 of the Sonthal Parganas Settlement Regulation, 1872, though in view of section 5-A the said regulation, record may be transferred to civil court for proper adjudication, as such, since the land belongs the Mahagama, the matter may be transferred to Sub-Judge, Godda, as such, this Court may after considering the same pass necessary order.

Considering the rival submissions of the parties, it appears that the petitioner is relying upon the order passed by the Settlement Officer, Dumka and that too after remand of the matter in terms of order dated 28.11.2005 and thereafter, the Settlement Correction Case No.126/2006 and 127/2006 have been instituted, but from prima-facie perusal of the impugned award, it appears that so many apparent error has been recorded in the impugned orders, the case number are also confusing and Assistant Settlement Officer has also confused himself while considering the Objection Case No.766/1905 and 768/1905 and thus finally recorded in page-80 running page-108 of the brief that "the issue of right and title has been left untouched because the petition is related with Jamabandi and settlement correction".

Under the aforesaid circumstances, this Court cannot place reliance to such finding recorded by the Settlement Officer.

So far, when the dispute is with regard to the right, title over the land from McPherson settlement and the land has been acquired by the ECL as recorded in the order of the Settlement Officer, it would be opened for the petitioner that he can seek remedy under the law in view of Section 5-A of the Sonthal Parganas Settlement Regulation, 1872, if so likes.

Accordingly, the instant writ petitions being devoid of merit are hereby dismissed.

(Kailash Prasad Deo, J.) Jay/-